State of Utah v. Killian

State of Utah v. Killian

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Kevin Wright Killian,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020455-CA
 

F I L E D
(September 11, 2003)
 

2003 UT App 309

 

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Eighth District, Duchesne Department

The Honorable John R. Anderson

Attorneys: Julie George, Salt Lake City, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Bench, Greenwood, and Orme.

BENCH, Judge:

Killian claims that his trial counsel was ineffective for not pursuing a theory of defense where the jury could have found him guilty of intoxication rather than DUI. We review his claim as a matter of law. See State v. Maestas, 1999 UT 32,¶20, 984 P.2d 376 (citing State v. Chacon, 962 P.2d 48, 50 (Utah 1998)).

To prevail on a claim of ineffective assistance of counsel, Killian must "identify specific acts or omissions that fell outside the wide range of professional assistance and illustrate that, absent those acts or omissions, there is a '"reasonable probability"' of a more favorable result." State v. Chacon, 962 P.2d 48, 50 (Utah 1998) (citations omitted). Killian identifies his trial counsel's failure to present an intoxication theory to the jury and to request an intoxication instruction as falling "outside the wide range of professional assistance." Id. For Killian to be convicted of intoxication, the State would have to prove that he was under the influence of a substance to a degree that he might endanger himself or another person, or to a degree that "unreasonably disturbs other persons." Utah Code Ann. § 76-9-701(1) (1999). The evidence presented at the suppression hearing and at trial clearly demonstrates that intoxication would not have been a viable alternative to DUI and, therefore, the performance of Killian's counsel was not deficient.

Even if Killian could establish that his counsel's performance was deficient, he must also demonstrate that he was prejudiced by such deficiency. "To establish . . . prejudice . . . [Killian] must show 'a reasonable probability exists that except for ineffective counsel, the result would have been different.'" State v. Munson, 972 P.2d 418, 422 (Utah 1998) (quoting State v. Lovell, 758 P.2d 909, 913 (Utah 1988)). That is, Killian must show that there is a reasonable probability that the jury would have found him guilty of intoxication rather than DUI if his counsel had pursued an intoxication theory and requested the accompanying instruction.

In arguing prejudice, Killian asserts that he "is sure that he would have been found guilty of public intoxication and the jury would have seen through the set up by the police officers had defense counsel been more vigilant." However, the evidence does not show a reasonable probability that Killian would have been convicted of intoxication if his counsel had pursued that theory. Proof that his counsel's "omissions prejudiced [him] must be a 'demonstrable reality and not a speculative matter.'" Chacon, 962 P.2d at 50 (quoting Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983) (other citations omitted)). Killian's assertions regarding his trial counsel's omissions are speculative and not supported by the evidence.

As for the jury seeing through the "set up by the police officers," Killian's trial counsel attempted unsuccessfully to establish an entrapment defense at the suppression hearing.
Trial counsel's decision not to claim entrapment at trial was a tactical decision supported by the evidence.(1)

Accordingly, we affirm Killian's conviction.

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Russell W. Bench, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. "[W]e give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them." State v. Wallace, 2002 UT App 295,¶31, 55 P.3d 1147 (quoting State v. Hall, 946 P.2d 712, 720 (Utah Ct. App. 1997) (quoting State v. Crosby, 927 P.2d 638, 644 (Utah 1996))).